Denver Omnibus & Cab Co. v. Mills

• Decision Date: 13 February 1912
• Parties: DENVER OMNIBUS & CAB CO. v. MILLS.
• Court: Colorado Court of Appeals

122 P. 798

21 Colo.App. 582

DENVER OMNIBUS & CAB CO. v. MILLS.

Court of Appeals of Colorado

February 13, 1912

Rehearing Denied April 8, 1912

Appeal from District Court, City and County of Denver; Carlton M Bliss, Judge.

Action by John H. Mills against the Denver Omnibus & Cab Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Thomas, Bryant & Malburn, of Denver, for appellant.

W.F Hynes and Philip Hornbein, both of Denver, for appellee.

CUNNINGHAM J.

While plaintiff was crossing the intersection of Larimer and Seventeenth streets, in the city and county of Denver, on a bicycle, a team belonging to the defendant and driven by an employé ran upon him, resulting in serious personal injuries to plaintiff and damage to his wheel. On a second trial of the cause, the jury returned a verdict of $1,675. The first jury disagreed. Under the evidence, the amount of the verdict was conservative, if plaintiff was entitled to recover at all. Plaintiff pleaded and introduced a speed ordinance which, he alleged, and the jury specially found, was violated by defendant's driver at the time of the accident. The competency and materiality of such ordinances in cases of this character, especially where they provide a penalty only for their violation, has been challenged by counsel for defendant, who contend (a) that they may not be admitted for any purpose; (b) if admitted their violation does not constitute negligence per se; (c) that civil liability may not be imputed to the master for the violation of the ordinance by his servant.

1. All these contentions have been elaborately and ably presented by counsel for defendant in briefs and on oral argument. The ordinance before us in this case reads as follows, in part "It shall be unlawful for any person in charge of any vehicle within the district *** to drive at a rate of speed greater than eight miles per hour, or without said district to pass any street intersection or turn any corner when any person or vehicle is near, or on any such intersection or corner, at a rate of speed greater than four miles per hour." Defendant contends that by its scope this ordinance is limited in its application to the person in actual charge of the vehicle; while plaintiff contends for the doctrine of respondeat superior. Writing on this subject, Judge Thompson, in volume 1, § 520, of his Commentaries on the Law of Negligence, says: "It is scarcely necessary to say that the rule of respondeat superior operates to charge masters in the case where the act done by the servant is prohibited by statute, so as to become under principles elsewhere discussed, negligence per se, as well as to cases where the act of the servant amounts to negligence under the principles of common law." This statement of the law by Thompson is characterized by counsel for appellant as "dicta, which, however, has not one single case to support it." In the case of Denver, etc., R.R. Co. v. Ryan, 17 Colo. 98, 100, 28 P. 79, 80, Mr. Justice Elliott, speaking for the court, says: "So, too, the jury were correctly charged that if they were satisfied from the evidence that the defendant company had failed to comply with said ordinances, or either of them, at the time of the accident that such failure was negligence on the part of the defendant." One of the ordinances under consideration in the Ryan Case reads as follows, in part: "It shall be the duty of the engineer or other person in charge of any locomotive engine within the city of Denver, on approaching any public crossing or highway, to ring the locomotive bell sufficiently loud to warn all persons of the approach of such locomotive engine. *** For every violation of this section, the offender shall, upon conviction, be fined in a sum not exceeding $100 for each and every offense." The ordinance before us, and the one under consideration in the Ryan Case, do not essentially differ. Referring to the Ryan Case, counsel for appellant say that the question of respondeat superior was not even considered. We have quoted enough from the opinion, we believe, to show that it was at least passed upon. If the announcement of our own Supreme Court in the Ryan Case and the statements of Judge Thompson be, as counsel contend, dicta, they are at least entitled to great respect, and are persuasive, if not controlling. In Buchner v. C., M. & N. Ry. Co., 60 Wis. 264, 19 N.W. 56, the Supreme Court of Wisconsin has this to say of dicta: "Mere obiter is not always reprehensible. On the contrary, some of the most sacred canons of the common law had their origin in the mere dicta of some wise judges."

But one authority is called to our attention by counsel for appellant to support the contention they make for the nonliability of the master, viz., Vandewater v. N.Y. & N.E.R.R. Co., 135 N.Y. 583, 32 N.E. 636, 18 L.R.A. 771. Mr. Justice Peckham, who wrote the opinion in the Vandewater Case, points out that there had been two statutes in the state of New York, one aimed at the railroad company, and another providing for the punishment of engineers who failed to sound the whistle or ring the bell at crossings. The statute against the railroad company not only provided for a penalty to be collected by the district attorney, but, in terms, also made the company liable for all damages sustained by any person by reason of such negligence. This act--that is, the one against the company--Judge Peckham points out, had been "repealed in so many words." It may well be that the New York court regarded the action of the Legislature in repealing the act as indicating its will or purpose to relieve the company entirely. Moreover, the Vandewater Case was decided by a divided court; Maynard, J., dissenting in the following language: "I dissent from that part of the prevailing opinion which holds that the duty of the engineer to give a signal when approaching a highway crossing is not the duty of the company, whose agent he is in running the engine, but concur in the result." From this we take it that the opinion in the Vandewater Case is not entirely free from the criticism that it was dictum, since we find the dissenting judge concurring in the result reached, while dissenting from the doctrine on which counsel for defendant here rely, as laid down in the majority opinion.

Since a corporation may only act through its agents, to give to the class of ordinances we are now considering the interpretation which defendant contends for would operate to relieve them entirely from liabilities which would attach to individuals engaged directly in the same occupation. For this reason, we prefer the views announced by Judge Thompson and our own Supreme Court in the Ryan Case, even granting counsel's criticism with reference to them to be justified, to the doctrine laid down in the Vandewater Case, supra. If authority is required to justify our preference, it may be found in Sagers v. Nuckolls, 3 Colo.App. 95-99, 32 P. 187 188, where Judge Reed, speaking of the maxim, "Qui facit per alium facit per se," and its more modern application, says: "The great multiplication of corporations, where all acts are necessarily performed by agents or servants, has latterly led to the extension and widening of the application [of the maxim] in many cases, in order to afford the requisite protection; and from such necessity courts have gradually extended the principle to cover cases not formerly supposed to be embraced." The whole question is one of evidence, and may be disposed...